183 Ind. 130 | Ind. | 1915
Lead Opinion
— This was a prosecution by the State, by indictment, of Bert Parker for assault and battery with intent to commit a felony, to wit, rape. The only assignment of error in this court is, the overruling of the motion for a new trial.
It seems to be the rule in nearly all the states that where a witness has been asked if he had not made statements to others in conflict with testimony given on the trial, and the witness denies making the statement and witnesses are called to impeach the witness by showing he had made the statement out of court, that witnesses may be called to show that the witness, sought to be impeached, had made statements to them or in their hearing, the same as given on the trial by the witness. This is not allowed in all the states, but where permitted, it is on the theory that if stated prior thereto, the same as upon the trial, and at a time when there was no opportunity to consider the weight or effect the statement would have in the case, it would rebut the probability ’ of the truthfulness of the impeaching testimony.
Judge Cooley in the case of Stewart v. People (1871), 23 Mich. 63, 74, lays down what we think is the true rule to be followed in such eases which is as follows: “If it were an established fact that the witness had made the contradictory statements, we should say that the supporting evidence here offered was not admissible. If a witness has given different accounts of an affair on several different occasions, the fact that he has repeated one of these accounts oftener than the opposite one, can scarcely be said to entitle it to any additional credence. A man untruthful out of court
It was an established fact by the admission of the witness herself that she had made the contradictory statements in the police court; hence no necessity arose for proving this statement and there was nothing to meet by showing she had made the statement at another time in conformity to her testimony on the witness stand.
For the error in admitting the evidence, heretofore set out, this cause is reversed with instructions to the court below to grant a new trial.
Dissenting Opinion
Dissenting Opinion.
— I am unable to agree that this cause should be reversed on account of the admission of the testimony of the witness, which action the opinion of the court declares was both erroneous and prejudicial. It seems to me that the opinion of the court oh this question is out of harmony, if not in conflict with many former decisions of this court. Hobbs v. State (1893), 133 Ind. 404, 32 N. E. 1019, 18 L. R. A. 774; Ramey v. State, ex rel. (1891), 127 Ind. 243, 26 N. E. 818; Beauchamp v. State (1842), 6 Blackf. 299; Coffin v. Anderson (1837), 4 Blackf. 395; Walker v. State (1894), 136 Ind. 663, 667, 36 N. E. 356; Hicks v. State (1905), 165 Ind. 440, 75 N. E. 641, and cases there cited. It appears to be in direct conflict with the holding of this court in Hinshaw v. State (1897), 147 Ind. 334, 371, 372, 47 N. E.
But aside from any question of what the rule is or should be, I feel strongly that the transcript of the record before us does not present ground for reversal in permitting the witness on redirect examination to testify that she had testified before the grand jury in harmony, with her testimony on the trial in the particular involved. If conceded to be technically erroneous to permit her to so testify, the bill of exceptions containing the evidence makes it obvious that it was harmless error. From the bill of exceptions it appears that on the trial the witness on her direct examination testified that she was in the front room of her house, a two room house which was near the street; that she saw appellant as he passed along the street in front of her home in a buggy; that in a little while she heard the dog bark in the
Following this the witness was permitted on redirect examination to say that she had testified before the grand jury that she first saw appellant as he drove past in the street in front of her house. For this the cause is reversed. I, think it should not be. In -no sense was it greatly material whether the witness first saw appellant passing in front of her house or whether she had made inconsistent statements in that particular. The material thing was that she saw him come into her house and what followed thereafter. It was natural that merely seeing appellant pass in the street in front of the house made the lightest impression on the memory of the witness while his unceremonious entrance into the rear door of her home without legitimate reason found a deeper lodgment. What more natural then that when first called to testify against him she should state the fact that had strongly impressed itself on her memory to
Moreover it appears, as shown above, that the cross-examination by appellant’s counsel brought out the fact that the witness before testifying in police court had told the prosecuting attorney that she first saw appellant as he passed in the street in front of her home. In view of that fact I fail to see how appellant can complain of the State’s pursuing, on redirect examination, a course which counsel for appellant had opened and invited it into.
Note. — Beported in 108 N. E. 517. As to impeaching witnesses, - see 14 Am. St. 157. As to the admissibility of previous statements by a witness out of court consistent with his testimony, see-41 L. B. A. (N. S.) 857. As to the right to compel accused to exhibit himself to determine identification, see 28 L. B. A. 699. See, also, under (1) 12 Cyc. 851; (2) 12 Oyc. 920; (3) 40 Oyc. 2760.